Cycling UK calls for clearer guidelines on careless and dangerous driving after van driver who killed cyclist is jailed for eight months

Cycling UK has called upon the Government to review the legislation relating to bad driving offences. The renewed call comes following three recent cases where drivers were sentenced for causing death by careless driving having initially been charged with the more serious offence of causing death by dangerous driving.

Most recently, Paul Brinkman was sentenced to eight months in prison and was disqualified from driving for two years and four months after his guilty plea for death by careless was accepted by the prosecution.

Cambridge News reports that Brinkman had been charged with causing death by dangerous driving after his van hit cyclist Ronald Bousted, 74, while overtaking a car on a narrow country lane near Gamlingay in Cambridgeshire on November 24, 2015.

Emma Nash, prosecuting, said: “The defendant clearly hadn’t seen the victim, because he was too close behind the other driver and his vision was obscured.”

Sentencing, Judge David Farrell said that Brinkman, a professional driver, had taken a risk in poor weather on a country lane and overtaken when it was unsafe to do so.

“No sentence given by this court could ever reflect the loss of someone’s life and no-one can ever turn the clocks back. Had you have been more patient, this matter could have been averted.”

In a separate case last week, Mishal Alshammary was warned to expect a custodial sentence after he hit and killed cyclist Clifton James having not slowed down for a mini-roundabout in Harrow. Again, the prosecution accepted a guilty plea to the lesser charge of causing death by careless driving. A formal not guilty verdict was entered to the charge of causing death by dangerous driving.

Magee – who had parked on double yellow lines, near a junction, facing into oncoming traffic – pulled away from the Co-op store in Teynham without indicating and moved across the carriageway into cyclist Barbara Phipps.

He was also criticised by the judge for not using on-board cameras or for using his wing mirrors correctly, yet denied the more serious charge of causing death by dangerous driving and this was accepted by the prosecution.

Careless driving or dangerous driving?

Careless driving is defined as that which “falls below the standard expected of a competent and careful driver.”

Dangerous driving is defined as that which “falls far below the standard expected of a competent and careful driver.”

Duncan Dollimore, Cycling UK’s Senior Road Safety and Legal Campaigns officer said that the current distinction was not fit for purpose.

“There has been an ongoing downgrading of the offence of causing death by dangerous driving to careless since it was introduced in 2008. This has meant the number of cyclist fatality cases prosecuted as dangerous are falling, with careless driving prosecutions seemingly preferred as an easier option.

“Cycling UK has repeatedly raised our concerns regarding this downgrading of offences which should be charged as dangerous to merely careless driving, and recently called upon the Ministry of Justice to review the legislation concerning bad driving offences.

“To many people, what is judged to be ‘careless’ and what is thought to be ‘dangerous’ is too arbitrary. If clearer guidelines cannot be applied more consistently by prosecutors and the courts, then the Government needs to ask whether the distinction between careless and dangerous driving offences is fit for purpose. Cycling UK doesn’t think it is, and we have put several proposals forward for the Government’s consideration. It’s time they listened and reviewed this area of criminal law.”

Cycling UK’s three proposals presented to the Ministry of Justice

These were provided to stimulate debate and Cycling UK says it is open to others.

Retain the current distinction between two levels of bad driving, but re-name the lower-tier offence (eg: unsafe or negligent driving instead of careless driving). In addition, revise dangerous driving in unambiguously objective terms (ie: relating to the manner of the driving, not the mindset of the driver). That was the intention with the 1988 Act, but it has not worked in practice. A possible definition for dangerous driving would be “Driving that gives rise to a reasonably foreseeable risk of non-trivial injury to any person, or of serious damage to property, where this risk would be reasonably foreseeable by a driver who was driving competently and carefully.”

Revert to a two-tier distinction between ‘careless’ and ‘reckless’ driving i.e. reintroducing the state of mind (mens rea) of the driver, but avoiding the problems that existed before the 1988 Act by making it clear that the court is entitled to infer the state of mind of the driver from the manner of the driving. In this case, it would also be necessary to introduce much tougher penalties for acts of ‘careless’ driving that caused actual danger, in order to signal the social unacceptability of lapses of attention when undertaking a task as safety-critical as driving. The two offences could be named ‘negligent’ and ‘grossly negligent’ driving, reflecting similar distinctions in other areas of the law (e.g. manslaughter).

Abolish the two-tier distinction altogether, and have a single offence of unsafe driving. Sentencing guidelines would then need to be drafted to cover the whole range of bad driving offences, from minor lapses to the most serious examples of wilful risk-taking. A comparison with the offence of ‘theft’ – which covers everything from minor shoplifting to major theft – shows that it is indeed possible to take this broad brush approach.